“[T]he [c]ourt . . . is required to make factual findings under [what is now RCFC 52.1] from the record evidence as if it were conducting a trial on the record.”
How later courts described this case
- “[T]he [c]ourt . . . is required to make factual findings under [what is now RCFC 52.1] from the record evidence as if it were conducting a trial on the record.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 22-424
(Filed: May 17, 2023)
___________________________________
) Military medical claim; challenges to the
MARK A. OLIVE, ) Army’s findings of fact
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
___________________________________ )
Robert J. Conlan, Sidley Austin LLP, Washington D.C., for plaintiff. With him on the
briefs were Drew Langan and Nicholas S. Willingham, Sidley Austin LLP, Washington D.C.,
Emily M. Wexler, Sidley Austin LLP, Chicago, IL, and Rochelle Bobroff and Clarissa
Cashmore, National Veterans Legal Services Program, Arlington, VA.
Daniel F. Roland, Trial Attorney, Civil Division, United States Department of Justice,
Washington, D.C., for the United States. With him on the briefs were Brian M. Boynton,
Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Douglas K.
Mickle, Assistant Director, Civil Division, United States Department of Justice, Washington,
D.C., as well as Frederick Rudesheim, Major, Judge Advocate General’s Corps, Litigation
Attorney, U.S. Army Legal Service Agency, Fort Belvoir, VA.
OPINION AND ORDER
LETTOW, Senior Judge.
This case arises from the United States Army’s refusal to grant plaintiff, Staff Sergeant
(“SSG”) Mark Olive, 1 Combat-Related Special Compensation (“CRSC”) for migraine headaches
as a residual of traumatic brain injury (“TBI-related migraine condition”). See AR 1-2, 5. 2 At
issue is whether the Army Human Resource Command’s (“the Army’s”) remand decision
denying plaintiff CRSC based on its finding that his migraine condition is not combat-related is
1
Although plaintiff is retired, the court will refer to him by his last military rank, Staff
Sergeant.
2
The administrative record is paginated consecutively and will be cited as follows:
“AR __.”
arbitrary, capricious, or contrary to law. 3 First, plaintiff argues that the Army’s finding that he
failed to establish his injury was caused by a combat-related event is unsupported by the record.
Second, he argues that by requiring that he submit medical evidence contemporaneous with his
injury the Army applied the wrong standard on remand. Finally, he contends that the Army’s
determination that his anxiety not otherwise specified with TBI (“anxiety with TBI condition”) is
combat-related 4 entails finding that his TBI-related migraine condition is also combat-related, so
it erred in denying him CRSC for the latter condition. Staff Sergeant Olive asks this court to
remedy these errors by reversing the Army’s decision and awarding him CRSC, retroactive to
the date he became eligible, for migraines residual to TBI. Pl.’s Mem. in Supp. of Cross-Mot.
for J. on the Administrative R. & Resp. to Def.’s Mot. for J. on the Administrative R. (“Pl.’s
Cross-Mot. Mem.”) at 2, ECF No. 21-1; Pl.’s Reply in Supp. of Cross-Mot. (“Pl.’s Reply”) at 5,
ECF No. 23.
FACTS 5
Plaintiff enlisted in the United States Army on April 7, 1999. Am. Compl. ¶ 18, ECF No.
13. He was medically retired “because of physical disability,” specifically two degenerative
spinal disabilities, on December 25, 2012. Am. Compl. ¶ 27. The Army has awarded plaintiff
CRSC for various conditions but has repeatedly denied compensation for his TBI-related
migraine condition because he has not shown that condition is combat-related. Am. Compl.
¶¶ 1-5, 31-36. 6 At issue currently is the Army’s most recent denial, set out in its remand
decision. See AR 1-3.
3
On June 14, 2022, the court had granted a remand in response to defendant’s motion for
reconsideration of SSG Olive’s disability claims. See Order of June 14, 2022, ECF No. 6.
4
An anxiety not otherwise specified, or “NOS,” rating is assigned when the examiner
determines a servicemember’s symptoms do not meet the criteria for any particular anxiety
disorder, e.g., posttraumatic stress disorder or obsessive-compulsive disorder. See 38 C.F.R.
§ 4.130.
5
The court’s findings of fact are based on the Administrative Record. See Bannum, Inc.
v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005) (“[T]he [c]ourt . . . is required to make
factual findings under [what is now RCFC 52.1] from the record evidence as if it were
conducting a trial on the record.”).
6
Traumatic Brain Injury is a general term that encompasses alterations in brain function,
or “other evidence of brain pathology caused by an external force.” See Ctrs. for Disease
Control & Prevention, Nat’l Insts. of Health, Dep’t of Defense, and Dep’t of Veterans Affs.
Leadership Panel, Report to Congress on Traumatic Brain Injury in the United States at 1
(2013), available at https://www.cdc.gov/traumaticbraininjury/pdf/Report_to_Congress_on_
Traumatic_Brain_Injury_2013-a.pdf (internal quotations omitted). It can result from blunt
(cont.)
2
A. Staff Sergeant Olive’s active duty
After enlisting in the Army in April 1999, SSG Olive served three tours of duty, the first
in Afghanistan and the second two in Iraq. Am. Compl. ¶ 19. Staff Sergeant Olive’s complaint
focuses primarily on incidents that occurred while he served as a truck commander during his
first tour. See Am. Compl. ¶¶ 20, 22. He drove the truck and occasionally manned its gun
during patrols ranging from 6- to 72-hours long. Am. Compl. ¶ 20. To avoid being trapped if
the vehicle rolled over, servicemembers, including SSG Olive, often chose not to wear seatbelts.
AR 30. This decision increased the likelihood of other injuries. See AR 30.
Relevant here, SSG Olive’s duties exposed him to blunt-force head injuries. He avers
that he was in four collisions involving other vehicles, AR 30, including one that caused him to
strike his head against the windshield, cracking the glass. Am. Compl. ¶ 22. Plaintiff recalls that
he was instructed to visit the medic following this incident but was not instructed to make a
statement. AR 30. Staff Sergeant Olive claims to have hit his head on the dashboard, ceiling,
and other parts of the truck’s metal interior on other occasions. Am. Compl. ¶ 22.
Plaintiff asserts that his duties also subjected him to blast injuries. Throughout his
Afghanistan tour, SSG Olive “regularly endured exposure to mortar attacks.” AR 32. During
one such attack he claims a mortar struck “20-30 meters from where he was standing with no
cover” and inflicted a “concussive-force injury.” Am. Compl. ¶ 23. Staff Sergeant Olive
recalled being “disoriented for approximately 30 seconds” and that his “ears were ringing and
[his] head felt tight and numb” for a couple minutes. AR 31. He states his ears still “ring
daily . . . sometimes multiple times per day, for 20-30 seconds each episode.” AR 31.
B. Staff Sergeant Olive’s medical retirement
After returning from his third and final tour, SSG Olive visited the outpatient social work
clinic on Schofield Barracks in Hawaii on March 3, 2011. AR 349-53. While he recounts
experiencing “mortar attacks, small gun fire, and grenades thrown near him” during his tour, his
primary complaint concerned a shoulder injury. AR 350. During this visit, he “denied any
[history] of head injury.” AR 351.
trauma or “indirect acceleration and deceleration forces or blasts.” Id. Such an injury has
outcomes ranging from “transient, reversable alterations in brain function” to irreversible
changes, “profound disability[,] or death.” Id. Even some with mild TBI “develop post-
concussion syndrome” which is “characterized by headaches, depression, irritability, sleep
disorder, poor concentration, and fatigue.” Id. at 1-2. “Since the beginning of Operation
Enduring Freedom (OEF) (Afghanistan) and Operation Iraqi Freedom (OIF), public health and
health care-communities have become aware of increased rates of [TBI] among active duty
[United States] military personnel.” Id. at iv. Indeed, “33,149 U.S. military personnel were
diagnosed with a TBI in 2011 alone.” Id. at xiv.
3
About six months later, on September 26, 2011, SSG Olive visited the TBI concussion
clinic on base. AR 345-48. While the notes from this visit indicated he “screened positive on
[the] m[ild ]TBI screening tool” and experienced “bi temporal headaches that last from hours to
all day” and occur about five times per week, the notes also state “[n]o TBI. [SSG Olive] meets
retention standards and is deployable worldwide f[r]om a TBI perspective.” AR 347-48.
Moreover, SSG Olive stated that “none of these [symptoms] were present immediately after any
of the vehicle[-]related events.” AR 347.
That December, SSG Olive attended two medical evaluations before an Army medical
evaluation board. The doctor who conducted the first exam surveyed SSG Olive’s history of TBI
and chronic headaches/migraines. AR 367-68. Staff Sergeant Olive “report[ed that] he
sustained many head injury(ies) during service,” including that he “continuously hit/banged his
head in the vehicle,” and that “the severity rating at the time of his head injury was mild.” AR
367. Staff Sergeant Olive stated that he had “symptoms of a concussion” as a result and suffered
headaches lasting four hours, three times per week. AR 367. In addition, SSG Olive “report[ed]
mood swings . . . [and] problems with attention . . . anger management . . . [and] memory,” as
well as daily dizziness spells. AR 368. This doctor diagnosed SSG Olive with migraines “due to
the service related TBI.” AR 378. The second report largely mirrors the first, indicating that
SSG Olive “[d]eveloped headaches after deployment in Afghanistan in 2004-2005, as he kept
getting his head banged around in his truck” and identifying the same symptoms. AR 339,
341-42.
Based not on SSG Olive’s TBI but on his spinal conditions, the medical evaluation board
referred him to the physical evaluation board. Am. Compl. ¶ 26. The physical evaluation board
awarded SSG Olive a 30% cumulative disability rating for his spinal conditions, and he was
medically retired effective December 25, 2012. Am. Compl. ¶ 27; AR 164.
C. Staff Sergeant Olive’s requests for CRSC
Before filing suit in this court, plaintiff requested CRSC six different times. While his
anxiety with TBI, tinnitus, and left maxillary sinusitis were ultimately verified as combat-related,
the Army consistently concluded he did not establish that his TBI-related migraine condition is
combat-related. AR 7, 110, 124-25, 386.
Staff Sergeant Olive first requested CRSC on January 8, 2013. AR 438-40. The Army
denied this request because he did not provide a Department of Veterans Affairs (“VA”) waiver
reducing his military pay by his VA disability payment, a formal pre-requisite to receiving
CRSC. AR 434.
Staff Sergeant Olive then sought and obtained VA disability ratings for various
conditions and requested his CRSC application be reconsidered with the appropriate VA waiver.
See AR 418, 421. The September 2013 VA rating decision found service connection for
plaintiff’s anxiety with TBI and assigned him a 40% disability rating. AR 40-43. The VA
assessed his unspecified anxiety disorder at 30% disabling and his TBI at 40% disabling but
evaluated them together because the symptoms co-mingle and “it is impossible to differentiate
4
which symptoms attribute to each diagnosis.” AR 40, 43. That decision also found his
TBI-related migraine condition was service connected but deemed it non-compensable. AR 48.
In denying the second CRSC request, the Army reasoned that plaintiff’s documentation
“does not show accident or incident to connect disability to a combat related event” for any of
his disabilities. AR 409.
In November 2013, before filing his third CRSC request, plaintiff asked the VA to
reconsider its September 2013 rating decision. See AR 219. The VA complied and issued a
second decision, finding plaintiff’s migraines were 30% disabling in April 2014. AR 220-21.
On August 7, 2014, plaintiff asked the Army to reconsider its denial of CRSC for the
third time. AR 404. He included the VA’s April 2014 rating decision and a written statement
averring he incurred TBI and related injuries “in the line of duty while deployed in Afghanistan.”
See AR 395, 408. Specifically, he stated that he sustained TBI and “[m]igraines [in] conjunction
with TBI” “during combat operations” and that, at some point, one of the vehicles near him ran
over an improvised explosive device. AR 408. Plaintiff acknowledged that he “d[id] not have
any combat action[] report[s] at the time of [his] deployment” and that he “seemed to check out
ok[ay]” with the team’s combat medic but averred that these injuries started to affect him “later
on.” AR 408. The Army again denied SSG Olive’s request, finding his letter presented “no new
evidence . . . to show [a] combat related event caused” his TBI-related conditions. AR 386.
In plaintiff’s fourth CRSC request he indicated his injuries were caused by an
“instrument of war,” AR 615, whereas in the past he marked the combat code “simulating war,”
see AR 438. He again averred that he was “hit in the head while on patrol” in Afghanistan, and
that he developed headaches in Iraq “that [he] believe[s] were due to close proximity to
explosions.” AR 615. In denying this request, the reviewing officer offered the most detailed
explanation yet:
On your [CRSC application], you state that your TBI resulted from being hit in
the head while on patrol. However, you provided no facts that you were engaged
with a hostile enemy when this incident occurred[,] and you were not issued a
Combat Action Badge. After a review of your medical history in the Armed
Forces Health Longitudinal Technology Application, I did not find notes
referencing a combat related incident for the above conditions. While you were
diagnosed with headache syndrome in 2006, you did not state a connection to a
combat related event. . . . In May 2010 you denied trauma or exposure to IED
blasts for complaints of your headaches and your TBI screening in February 2011
was negative. Therefore, I found no evidence of a combat related event to support
awarding CRSC for your conditions. . . . After a thorough review of your
provided documentation and available military records, we were unable to find
any substantiating evidence . . . linking the cause of your claimed conditions to a
qualifying combat related disability . . . for CRSC entitlement. Unfortunately, an
5
uncorroborated statement in a record that a disability is combat related will not, in
and of itself, be considered determinative for purposes of meeting the combat
related standards for CRSC benefits.
AR 384-85.
Undeterred and represented by counsel for the first time, plaintiff submitted a fifth CRSC
request on March 4, 2020. Pl.’s Cross-Mot. Mem. at 5; AR 309. He supplemented his
application with a personal statement, a 2008 sworn statement from Captain Reginal Remley,
and medical records from 2011 forward. See AR 310-83. Captain Remley’s statement, made on
September 10, 2008, described an ambush in which an armored vehicle in Hardcore #51 patrol
was hit by a mortar. AR 359. Captain Remley was initially concerned that “many soldiers could
have been injured” by the mortar blast because they “did not have force protection up,” but he
stated that “no one was injured from the mortar blast.” AR 359. Captain Remley does not
mention SSG Olive by name. See id. In his statement, SSG Olive describes the same incident,
averring he was “a member of the Hardcore #51 Patrol Team.” AR 320-21.
On April 13, 2020, the Army granted plaintiff’s request for CRSC for anxiety with TBI,
explaining its decision only by stating that “[w]e . . . have approved your claim in accordance
with current program guidance.” AR 209-10. Because this decision did not mention plaintiff’s
claim for his TBI-related migraine condition, he requested clarification on July 23, 2020, and
again on January 25, 2021. AR 304-07. The Army responded on February 25, 2021, denying his
request because “[d]ocumentation does not show accident or incident to connect [his TBI-related
migraine] disability to a combat related event.” See AR 265-66.
In his sixth CRSC request, plaintiff submitted no new documentation. See AR 134. In its
decision denying this request, the Army explained “[t]here were no military medical documents
in your claim that confirm your conditions were directly caused by a specific combat-related
event” and that personal statements are not admissible evidence under CRSC guidelines. AR
111. The decision also indicated that, to request reconsideration, plaintiff would have to provide
“[m]edical documentation . . . from the time the injury occurred” that “clearly show[s] a combat
related event.” Id.
D. Instant proceedings
Plaintiff initiated this action on April 12, 2022. Compl., ECF No. 1. The government
then requested a voluntary remand to reconsider SSG Olive’s claim for relief. Def.’s Unopposed
Mot. for Voluntary Remand and Stay, ECF No. 5. The court granted the government’s motion.
Order of June 14, 2022, ECF No. 6.
On remand, the Army determined that SSG Olive’s left maxillary sinusitis was combat-
related but again denied his request to be awarded CRSC for his TBI-related migraine condition.
AR 1-2. It concluded “no new medical evidence [was] provided to show [a] combat related
event caused [the] condition.” AR 2. First it compared the VA’s assessment of his anxiety with
TBI and TBI-related migraine conditions. AR 2. The VA rated his unspecified anxiety disorder
and his TBI together because they have “overlapping symptoms” and so “it is not possible to
6
differentiate the symptoms from each diagnosis.” AR 2. In contrast, his “migraine headache
condition is rated separately, was not found to be secondary to [his anxiety with TBI], and is
specifically attributed to [his] TBI.” AR 2.
Next, it explained that SSG Olive’s personal statement lacked “supporting documentation
to confirm [his] TBI was caused by a specific combat-related event.” AR 2. Specifically, the
Army reviewed SSG Olive’s medical history along with “all documentation” that he submitted
with his request, and determined the medical documentation “is based upon . . . personal,
uncorroborated statements made years after the events would have occurred and is not based on
any treatment record from the time of a combat[-]related event.” AR 2-3. Accordingly, it again
advised SSG Olive that if he sought reconsideration he must provide “medical documentation . . .
from the time the injury occurred” and that “clearly show[s] a combat[-]related event.” AR 3.
Staff Sergeant Olive then filed an amended complaint focusing on alleged errors within
the Army’s remand decision. See Am. Compl. ¶¶ 47-49. Specifically, he identifies three
deficiencies. First, he alleges the Army’s decision to award CRSC for his anxiety with TBI but
deny CRSC for his migraines “residual to the same TBI” is inconsistent “because both
disabilities are associated with the same TBI, which cannot rationally be deemed combat related
for one condition and not combat related for the other.” Am. Compl. ¶ 47. Second, SSG Olive
maintains the Army’s determination that his personal statement is uncorroborated is not
supported by substantial evidence because “voluminous medical records” he submitted
“provide[] ample evidence” supporting his statement. Am. Compl. ¶ 48. Finally, he maintains
the Army required him to provide medical evidence contemporaneous with his injury and that
this requirement is “arbitrary, capricious, and otherwise not in accordance with law.” Am.
Compl. ¶ 49.
The parties then briefed these issues in competing motions for judgment on the
administrative record. See Def.’s Mot. for J. on the Administrative R. (“Def.’s Mot.”), ECF No.
19; Pl.’s Cross-Mot. for J. on the Administrative R., ECF No. 21; Pl’s. Cross-Mot. Mem.; Def.’s
Reply in Supp. its Mot. for J. on the Administrative R. and Resp. in Opp’n to Pl.’s Cross-Mot.
for J. on the Administrative R. (“Def.’s Reply”); Pl.’s Reply. These motions are ready for
disposition.
STANDARDS FOR DECISION
“[T]he specific law to be applied” in the case at hand determines which standard of
review governs a motion for judgment on the administrative record. Rules of the Court of
Federal Claims, Rule 52.1 Rules Committee Note, 2006 Adoption. This court will disturb the
decision of a military board only if it is “arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010). A
decision that, in view of the entire record, is “reasonable and supported by substantial evidence”
will not be overturned. Ford v. United States, 150 Fed. Cl. 220, 224 (2020). A board’s decision
will likewise be upheld if it reflects a “rational connection between the facts found and the
choice made.” See Burlington Truck Lines Inc. v. United States, 371 U.S. 156, 168 (1962). In
contrast, a decision is arbitrary or capricious if it “entirely failed to consider an important aspect
of the problem,” offers “an explanation . . . that runs counter to the evidence,” or is “so
7
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983). Accordingly, “when reasonable minds could reach differing conclusions on the
same evidence” this court “cannot substitute [its] judgment for that of the military departments.”
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983).
ANALYSIS
Staff Sergeant Olive’s claim involves three interconnected compensation schemes:
Department of Defense (“DOD”) retirement pay, VA disability compensation, and CRSC. First,
SSG Olive is entitled to retirement pay as a medical retiree. AR 107. He is an eligible
servicemember deemed “unfit to perform the duties” of his office “because of a physical
disability incurred while entitled to basic pay.” See 10 U.S.C. § 1201. 7
Second, plaintiff is entitled to VA disability compensation. AR 51-54. He was
“discharged or released under conditions other than dishonorable” for a service-connected
disability — a disability “resulting from personal injury suffered or disease contracted in line of
duty . . . during a period of war,” and not from any “willful misconduct or abuse of alcohol or
drugs.” 38 U.S.C. § 1110; 38 U.S.C. § 101(16) (“The term ‘service-connected’ means . . . that
such disability was incurred or aggravated . . . in line of duty in the active military.”).
A. Applicable regulations
This case concerns the interaction of these two programs and the CRSC that plaintiff
seeks. See Am. Compl. ¶ 36; AR 1-3. Before Congress established the CRSC program, all
servicemembers who were eligible for both retirement payments and VA disability compensation
were subject to the bar on concurrent receipt. See Kristy N. Kamarck & Mainon A. Schwartz,
Cong. Rsch. Serv., R40589, Concurrent Receipt of Military Retired Pay and Veteran Disability
at 1 (2020) [hereinafter “CRS Report”]. This bar prevents servicemembers from
“simultaneously receiving two types of federal monetary benefits: military retired pay from the
[DOD] and disability compensation from the [VA].” Id. Under the rule, servicemembers “waive
a portion of their retired pay equal to the amount of VA disability compensation.” See id. at 1.
Initially established in 2003 and expanded in 2008 to include servicemembers who were
medically retired, CRSC serves as a supplemental payment that functionally nullifies the bar on
concurrent receipt. 8 It provides eligible servicemembers with eligible disabilities “a cash benefit
7
Medical retirement payments are determined by the servicemember’s monthly base pay
at separation and his combined disability rating, i.e., the sum of the DOD-assigned percentage
for each qualifying condition. See 10 U.S.C. § 1401.
8
For example, under the bar on concurrent receipt, a retiree entitled to $1,500 in retired
pay and $1,000 in VA disability pay would waive $1,000 in retired pay and receive the
remaining $500 as well as $1,000 in disability pay. If, however, the Army determines that same
(cont.)
8
financially identical to what concurrent receipt would provide” and is generally “equal to the
amount of VA disability compensation that has been determined to be combat related.” CRS
Report at 1, 5. A servicemember who receives retired pay and has waived VA disability pay
pursuant to the bar on concurrent receipt is eligible for CRSC for disabilities that are
combat-related. Id. at 1, 6.
Staff Sergeant Olive receives retirement pay. See AR 336-37. He waived the required
portion of his VA compensation, see AR 127, and the VA rated his TBI-related migraine
condition as 30% disabling, AR 396. The only issue here is whether the Army erred in finding
this condition is not combat-related and denying his CRSC request on that basis. Am. Compl.
¶¶ 46-49.
A disability can be service-connected and eligible for VA disability and DOD medical
retirement pay without being combat-related for the purposes of special compensation. A
servicemember must prove by a preponderance of evidence that a disability is combat-related.
AR 71. 9 As relevant to SSG Olive’s claim, an injury incurred “as a direct result of armed
conflict” or “through an instrumentality of war” is combat-related. 10 U.S.C. § 1413a(e)(2).
Under DOD guidance, “armed conflict” includes “war, expedition, occupation[,] . . . battle,
skirmish, . . . or any other action in which [s]ervice members are engaged with a hostile or
belligerent nation, faction, force or terrorists.” AR 77. Next, “instrumentality of war includes”
any “vehicle, vessel, or device designed primarily for Military Service and intended for use in
such Service at the time of the occurrence or injury.” AR 77-78.
The Army makes its determination of combat-relatedness “with respect to each separate
disability.” AR 68. Ordinarily, a servicemember must establish a “definite” or “direct” causal
relationship between the injury and the armed conflict or instrumentality of war, respectively.
AR 77-78. The VA presumes certain “secondary conditions,” are service-connected if they are
“proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a).
For certain injuries, if the VA indicates it applied a presumption in finding the injury is
service-connected, the Army must likewise presume that injury is combat-related. See AR 68.
retiree is entitled to CRSC for half of the injuries reflected in the $1,000 in VA disability pay, the
retiree would receive $2,000 instead — $500 in CRSC plus $500 in retirement pay and $1,000 in
VA disability pay. Because CRSC is assessed and disbursed after the servicemember waives the
required amount of their VA benefits, it does not prevent the operation of the bar on concurrent
receipt. CRS Report at 5.
9
The administrative record contains the Department of Defense CRSC guidelines at AR
63-78, Dep’t of Defense, Combat-Related Special Compensation (CRSC) Section 1413a, Title
10, United States Code, As Amended Revised Program Guidance January 2004, available at
https://militarypay.defense.gov/Portals/3/Documents/CRSC_Guidance_104.pdf. When
referencing these guidelines, the court cites to the Administrative Record.
9
Here, the VA does not indicate it applied any such presumption to either plaintiff’s TBI-related
migraine condition or his anxiety with TBI condition. See AR 40-43, 48.
B. Substantial evidence supports the Army’s finding that plaintiff’s TBI-related
migraine condition is not combat-related
The parties contest whether the Army adhered to DOD guidance in denying plaintiff’s
most recent request for special compensation. Under this guidance, the Army must review and
weigh all “available documentary information” and determine whether the servicemember
proved their disability is combat-related by a preponderance of the evidence. AR 71. This
determination must be based on “credible, objective documentary information in the records as
distinguished from personal opinion, speculation, or conjecture.” AR 71.
The government maintains that SSG Olive has not carried his burden of proof.
Specifically, it contends his personal statement does not establish his disability was combat-
related because it is uncorroborated and even undercut by the record. Def.’s Mot. at 2, 21.
Neither the two service awards upon which SSG Olive relies, Captain Remley’s statement, nor
SSG Olive’s own statements indicate his injury was combat-related. Id. at 21. Likewise, the
2011 medical records — notes from his visit for a shoulder injury in March, the September TBI
clinic examination, and two December medical evaluation board reports — provide little
independent support for his claims because they were issued six years later and “merely recount”
without validating SSG Olive’s recollection of events. Id. at 22. The government also argues
that SSG Olive’s failure to mention the mortar attack during any of these examinations is
inconsistent with his recent statements supporting his CRSC application. Id. at 24.
Aside from arguing the Army’s CRSC award for anxiety with TBI entails awarding
CRSC for his TBI-related migraine condition, Pl.’s Cross-Mot. Mem. at 17-18, addressed infra,
at 12-13, plaintiff contends that his failure to report his injuries earlier does not amount to an
inconsistency. Id. at 18-19. Instead, it reflects the “reality that many injuries — particularly
those in issue here — may not seem significant enough to require treatment until much later.”
Id. at 19.
Staff Sergeant Olive’s failure to contemporaneously report migraines does not contradict
his allegations that certain combat-related events caused his migraine condition. The salient
question becomes whether plaintiff’s proof provides the Army an adequate basis for determining
that he has or has not established that his migraine condition is combat-related.
All the events plaintiff alleges caused his migraine condition occurred before April 27,
2005, when he returned from his first tour of duty in Afghanistan. See AR 15, 408; Am. Compl.
¶¶ 22-23. The two service awards represent some of the oldest evidence in this case, and neither
supports his claim to have been injured during combat. See AR 80-81 (recognizing his
“performance and dedication to duty were critical to the success of combat operations” and
authorizing him to wear a shoulder insignia recognizing his service).
Next, the earliest medical records plaintiff relies upon were recorded in 2011, nearly six
years after he returned from Afghanistan. Even within these documents, SSG Olive’s statements
10
provide the only causal connection between his symptoms and the precipitating events. Records
from the March 2011 doctor’s visit indicate plaintiff “said he worked on a gun truck” and
“experienced mortar attacks” but draw no conclusion regarding whether he suffers from TBI.
AR 350. While the September TBI clinic notes report that SSG Olive “state[d]” that he
“experienced being rattled around in the truck, bouncing his head off the walls, interior a variety
of times” while in Afghanistan, the TBI clinician takes no position regarding the cause of
plaintiff’s TBI symptoms. AR 347.
The two December 2011 medical evaluation board assessments likewise rely solely on
SSG Olive’s recollection, reciting that “[h]e reports he sustained many head injury(ies) during
service,” AR 93, and that he “reports that during deployment in Afghanistan in 2004 . . . [he]
kept getting bounced around in his kevlar, hitting his head against the sides of the truck and
getting thrown through the windshield on patrol.” AR 20. While one doctor concludes
plaintiff’s migraine headaches are service related, this determination relies solely on SSG Olive’s
statements during a visit, and the doctor did not conclude the injury was caused by a combat
event. AR 93, 104. As late as March 2011, when he returned from his third and final tour, SSG
Olive denied he had suffered any head injuries. AR 351. Moreover, within these records SSG
Olive attests his symptoms were mild at the time of the injury. AR 367. Elsewhere he denies
experiencing any symptoms immediately following the events. AR 347. Nor does Captain
Remley’s statement provide the missing causal link. Although Captain Remley’s statement
confirms a mortar attack occurred and, when combined with SSG Olive’s statement, that plaintiff
was present, Captain Remley also says “no one was injured from the mortar blast.” AR 359.
Accordingly, the Army reasonably determined this medical documentation was based on
“personal, uncorroborated statements made years after the events would have occurred.” AR
2-3. The Army did not ignore the evidence upon which SSG Olive relied, and its determination
that plaintiff failed to provide a causal link between his TBI and a combat-related event is
supported by substantial evidence.
C. The Army’s statement regarding contemporaneous medical evidence
The parties also dispute whether the Army erred by requiring SSG Olive to submit
medical evidence from the time of his injury. The parties’ arguments center on two statements in
the remand decision. First, that the Army had reviewed SSG Olive’s personal statement
alongside “all documentation provided with [his] claim and [his] medical history;” and second,
that, “[t]o reconsider [his] migraine condition, [he] must provide this office with military medical
documentation . . . from the time the injury occurred.” AR 2-3.
The government contends the Army’s first statement demonstrates that it applied the
correct standard and that its second statement concerning contemporaneous evidence was
guidance for any future reconsideration requests. Def.’s Mot. at 3. Plaintiff responds that this
“litigation argument is impossible to square” with the second statement’s “unequivocal
direction” that SSG Olive must provide medical evidence contemporaneous with his injury. Pl.’s
Cross-Mot. Mem. at 12-13.
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Considering this case’s procedural history, the Army’s second statement constitutes
guidance regarding future reconsideration requests and not a standard it applied on remand.
Plaintiff has asked the Army for CRSC for his migraine condition on six separate occasions and
been denied each time. The Army has reviewed the 2011 medical records each time and has
considered Captain Remley’s statement at least twice. Neither the factual evidence before the
Army nor its assessment of this evidence with respect to SSG Olive’s migraine condition has
changed. Most recently, the Army reviewed all the evidence before it and denied plaintiff’s
CRSC request because his uncorroborated personal statements along with the medical records he
submitted were insufficient to show that his migraine condition is combat-related. AR 2. This
shows the Army followed applicable guidance, and the statement that he “must” obtain
contemporaneous medical evidence is a recommendation for how to bolster future submissions.
Therefore, the Army did not apply a standard requiring contemporaneous medical evidence and
did not act contrary to law.
D. The Army did not err in granting plaintiff CRSC for his anxiety with TBI condition but
denying CRSC for his TBI-related migraine condition
Finally, the parties contest whether the Army erred by denying plaintiff CRSC benefits
for his TBI-related migraine condition considering its decision to award him special
compensation for anxiety with TBI. Specifically, the parties disagree about whether the remand
decision adequately addressed this apparent contradiction.
Plaintiff contends that because the Army found that the evidence he submitted established
that his anxiety with TBI was combat-related, it “could not rationally have concluded that the
same evidence was insufficient to show that his [m]igraines [r]esidual to the same TBI were not
combat related.” Pl.’s Cross-Mot. Mem. at 2. The Army did not state what combat-related event
it found caused SSG Olive’s anxiety, and the only records it relies upon in its remand decision
are the VA rating establishing his “TBI is associated with both his Anxiety and his Migraines
Residual to TBI.” Id. at 13-14. Indeed, both the VA and the Army assigned the higher 40%
rating for his anxiety with TBI condition rather than the 30% rating the VA attributed to his
anxiety. Id. at 15-16; see also AR 1, 40-43. According to plaintiff, “nothing in the VA’s Ratings
Decision justifies [the Army’s] disparate treatment” of these two conditions. Pl.’s Cross-Mot.
Mem. at 15.
The government responds that the Army acted reasonably in awarding plaintiff CRSC for
his anxiety with TBI but not for his migraines because “the two conditions were rated separately
by the VA, and his migraine headaches were not identified as an overlapping symptom of his
anxiety disorder.” Def.’s Mot. at 3. Moreover, the government contests three assumptions
underlying SSG Olive’s argument: (1) that the Army “determined that his ‘TBI’ condition was
combat related;” (2) that his migraine condition and his anxiety condition were both caused by
TBI; and (3) that the two conditions were caused by the same events. Def.’s Reply at 7-9.
Because the conditions are separate, the determination that plaintiff’s anxiety with TBI was
combat-related does not necessarily entail that his migraines are combat-related.
Here, SSG Olive apparently argues that his migraine condition should be presumed to be
combat-related because his anxiety with TBI was found to be combat-related. The law provides
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no such presumption, and the record supports the Army’s decision to assess the two conditions
separately. As explained in the remand decision, the VA did not deem that plaintiff’s migraines
were an “overlapping symptom[]” of his anxiety with TBI. See AR 2. Instead, his migraine
condition was “rated separately, was not found to be secondary,” and is attributed to his TBI.
AR 2. Although the Army found his anxiety with TBI is combat-related, it never found his TBI
alone is combat-related. See AR 2, 300. Nor does the Army’s finding that either his TBI or his
anxiety was combat-related logically entail that his TBI was combat-related. The Army’s
reasoning therefore contains no contradiction. The remand decision adequately explains why,
considering the whole record, the Army concluded that neither the VA’s determination that both
conditions are service connected nor the Army’s own finding that his anxiety condition is
combat-related provided sufficient evidence to establish his TBI-related migraine condition is
combat-related.
The government explains why the Army’s remand decision does not necessarily
contradict its determination that plaintiff’s anxiety condition was combat-related. For instance, if
the Army determined plaintiff’s anxiety with TBI was caused by the mortar attack it could still
reasonably find his migraines were not because there is insufficient evidence that he was
physically injured in the attack. Put differently, the Army could find that plaintiff’s anxiety with
TBI condition is combat-related based on his statement that he “feared for [his] life,” AR 148,
while finding plaintiff’s medical records, plaintiff’s statements, and Captain Remley’s statements
failed to establish that this event caused his TBI-related migraines. Thus, the Army can
consistently conclude that the record supports finding the event that caused his anxiety condition
did not cause his migraine condition.
Plaintiff challenges the government’s explication of the Army’s remand decision as an
impermissible post-hoc rationalization. Pl.’s Cross-Mot. Mem. at 15. The Army’s rationale for
denying plaintiff CRSC for migraines is sufficient, however, without this reasoning. The Army
determines combat-relatedness with respect to each disability separately, and as discussed, the
agency sufficiently defended its assessment of the record evidence and decision not to award
CRSC for migraines. It reasonably concluded SSG Olive’s personal statement was
uncorroborated by the documentation he provided.
Accordingly, plaintiff’s argument fails. Finding that his anxiety with TBI condition is
combat-related does not entail finding that his TBI-related migraine condition is as well. The
Army did not err in finding plaintiff’s TBI-related migraine condition is not combat-related.
CONCLUSION
Accordingly, the government’s motion for judgment on the administrative record is
GRANTED and the plaintiff’s motion for judgment on the administrative record is DENIED.
The Clerk of Court is directed to enter judgment in favor of defendant.
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No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
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